85

One difference is that the trial (and, behind it, criminal prosecution and legal punishment) is something the state is organising for its own purpose in the first place. The right to a speedy trial is not a right to a trial or anything along those lines, it is a limitation on the conditions under which the state can apply punishment and restrict someone's ...


43

The right to a speedy trial just means that the prosecutor may not delay the trial unreasonably. The prosecutor is not actually required to provide a trial. The trial is a requirement to keep the defendant incarcerated or otherwise limited, e.g. by a bail agreement. So a speedy trial is a limitation on the prosecutorial power. If tried, the trial must be ...


23

The linked article defines "rights" in a particular way and then goes on to argue that "healthcare" cannot be a right under that definition. This is akin to the "No True Scotsman" fallacy. Hamish sees an Englishman wearing highland dress incorrectly. "No Scotsman would ever put a sporran on upside-down" he claims. His wife responds "But don't you recall ...


22

The Maryland Law Review published an article summarizing several sources of the U.S. freedom of the press (Bogen, 1983). Parliamentary Privilege Prior to the American revolution, freedom of press and speech were only applied to members of Parliament as a part of their official duties. At this point the two rights were distinct: members of Parliament ...


18

The Ninth and Tenth amendments are something of an inseparable pair. The Ninth in particular has been almost entirely subsumed into the Tenth, and almost never gets mentioned in any binding opinion/decision. The Lost Jurisprudence of the Ninth Amendment by Kurt Lash is a fairly recent treatment of the Ninth amendment's jurisprudence (insofar as mostly ...


12

Many Constitutional scholars argue that these are not redundant clauses. Remember, during this time the printing press was still a relatively new invention. Freedom of the press likely refers to protecting use of the press as a technology, as opposed to an industry. Freedom of speech may well overlap with the duties of the press as an industry, but the ...


12

I'm guessing that the Second Amendment isn't covered by substantive due process; otherwise I think the federal background check laws we have now would probably have been ruled unconstitutional. As the other answer already stated, it is a substantive due process right, as per the Supreme Court. The thing is that a federal background check is due process. ...


9

The scenario highlighted by your question already exists. Federal policy exists where the Government can steer federal monies away from private companies that have discriminatory practices, under Executive Order 11246. Business that perform contract work for the Federal government are prohibited from "engaging in workplace employment discrimination on the ...


9

Ever since Marbury v Madison, the Supreme Court of the United States has had the power to determine what is and what isn't constitutional, and to strike down (or roll-back) an unconstitutional law. "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original ...


9

I don't think the two can be linked. In your speedy trial example, a defendant would be just fine if there was no trial since without one they cannot possibly be punished. It is the state that wants a trial so that they can then provide punishment for the accused if and when they are found guilty. Without this trial, it would be a violation of the 6th ...


9

The tenth amendment has been called a "truism" by the SCOTUS, As such it formally never mattered. It was always implicit. The amendment states but a truism that all is retained which has not been surrendered. (from US v Darby Lumber Co.) The amendment is sometimes referenced in judgments when the Federal government requires states to enforce ...


6

The question is quite biased towards "politicians and big business have vested interests and influence in keeping citizens dumb", as the context is much more complicated. Teaching politics, laws and regulation is only partially school's job, according to this article and does not seem to get lower as time passes: [..] that schools are still teaching ...


6

While Bobson gave an excellent answer, I am going to step out and give a slightly different one, bearing in mind the exct wording of the question The constitutionality of the principle of government forcing businesses to not discriminate against protected minorities was established during the legal challenges to the Civil Rights Act of 1964. The act forced ...


6

Per the Firearm Owner's Protection Act, No such rule or regulation prescribed after the date of the enactment of the Firearms Owners' Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United ...


6

The concept you're looking for is the Third-Party Doctrine (wiki). As a concept, it's derived from a 1979 SCOTUS case (Smith v. Maryland) about whether the authorities could gather information about a phone call by placing a device (a "pen register") in the telephone company's office. To quote the decision (emphasis mine): Given a pen register's ...


6

Does the Constitution/Bill of Rights allow for temporary restrictions in case of emergencies? Yes. Such restrictions must meet certain tests, among which are "appropriately tailored to achieve a sufficiently important government interest", taken in good faith and have a factual basis that the restrictions are necessary to maintain order. It doesn'...


5

The ability of a private organization to discriminate based on religion is governed by the Religious Freedom Restoration Act or the state equivalent law. Essentially these laws prohibit the government from restricting the free exercise of religion unless the state can prove a compelling interest in doing so and then only in the least restrictive way possible....


5

McDonald V City of Chicago. Substantive Due Process and Strict Scrutiny were the mechanism used to incorporate the protections of the Second Amendment to the States. In the course of US Constitutional Law, and highlighted by the linked opinion, the right took keep and bear arms is a fundamental right (pg 4). Fundamental rights are subject to substantive due ...


4

You can read the debate on this bill on the Library of Congress website starting here. No roll-call vote was taken, but the amendment passed through a committee of the whole by a vote of 27 - 22. Below I have summarized the House debate at this time (as far as the record shows): James Madison James Madison was one of the most forceful advocates of the ...


4

Simply put, this is exactly the question that Elaine Photography is going to decide. And, until the court actively overrules the lower court decision, the answer is, in theory "Yes, they can." The facts of the case are simple enough - when the religious right to "practice the free exercise thereof" conflicts with the rules required of a place of public ...


4

In the United States, weapon ownership is a constitutional right (second amendment). The federal government cannot remove a person's right to own a gun without due process. The fourteenth amendment extended that to include state governments. This was only officially recognized in 2010 for the second amendment, although it was previously recognized for ...


3

The core difference between your two scenarios is the parties involved. In the healthcare scenario, the two parties are both private individuals (healthcare providers and patients). In the judicial example, only one party is a private person while the other is the state. In liberal theory, which liberalism is a piece of, the state exists outside of the ...


3

The rights / protected classes you are talking about are equal protection issues, which fall under the 14th Amendment. (Summarized as equal protection under the law). The Supreme Court decided in 1883 that the Civil Rights Act of 1875, which prohibited private businesses from discriminating against African Americans was unconstitutional because "The ...


3

It's the ultimate separation of powers. The moment we acknowledge that the right of citizens to self-defend, to defend mutually, and to unite to throw off tyranny is a God-given, unalienable right, the power of both foreign and local governments, and of all organized and unorganized hostiles becomes limited and manageable. It's in the Second Amendment ...


3

Would this also allow a private organization to discriminate on a religious basis, e.g. could the Boy Scouts also prohibit Muslims, Scientologists, or Mormons from joining? The answer is: it depends. Federal anti-discrimination laws normally prevent discrimination by organizations based on race, gender, or religion, but there are a couple of notable ...


3

The 10th amendment is also relevant in recent discussions of police reform. Basically, because of the 10th amendment, congress can't just change how the police work because that's up to the states. The Constitution establishes a “system of dual sovereignty between the States and the Federal Government.” Under the Tenth Amendment, “[t]he powers not delegated ...


3

There are only a few parts of the constitution that can expressly be temporarily suspended. For example Art 1 Sec 9: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. So in a war, Habeas Corpus may be suspended (as it was in the Civil War). But not otherwise. ...


3

In cases of governments being allowed to infringe on constitutional privileges the doctrine of strict scrutiny is generally applied. This is especially the case for first amendment issues. The requirements of strict scrutiny must satisfy three requirements. The government must show a compelling interest which generally means national security, preserving ...


2

Yes, your right to complain about the government is a fundamental right, protected by the bill of rights. The first amendment states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to ...


2

I think the issues are different enough that your argument does not invalidate theirs. The right to a speedy trial prevents the government from incarcerating someone indefinitely without being able to prove their case. If they are unable to provide one with due process, it merely means that the government has to let the citizen go, supposedly. It's less ...


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